In re Proving the Last Will of Green

Robert Green, father of testator, a prominent ■business man and an old resident of the city of Troy, died in 1876, leaving a widow and two children. He was twice married. By Lis first wife he had a son, the testator. The' only surviving child of the second marriage was a daughter, Georgianna R. Green, born -some ten years after her brother. He was about forty-eight years -of age at time of his death.

The property which William' H. Green owned at the time of his death was derived principally from his father. It consisted of one-lialf interest in two brick stores in Troy and a three-story brick building in Brooklyn, and certain stocks and bonds and a «collection of pictures, coins and books, all of the value of about ¡$40,000.

William H. Green continued to reside at Troy until his death, which occurred August 11, 1890, at Patchogue, where he was temporarily sojourning.

Among his relatives, besides his sister, testator had three cousins-residing at Troy, children of Mrs. Kate Green and William H. Green (his father's brother), viz., Misses Mamie, Sarah and Emma Green, and six second cousins in Brooklyn, children of a cousin, of his father, viz., Eugene F. and Albert 0. Barnes, and their four sisters, Misses Emma and Angie Barnes, Mrs. Bobbins and Mrs. Wykoff, who are the beneficiaries under the will of July 2, 1888. He had also four cousins, the children of his mother’s brother, residing at Peekskill, N. Y., who, with his sister, were the beneficiaries under the last will of July 22, 1890.

The testator was an invalid for some time prior to his death. He was suffering from Bright’s disease and an irregular action of the heart. This heart trouble had been chronic for years and made him an invalid, subject to frequent attacks, which prostrated him for days and weeks at a time. He was undersized and quite deformed.

After the death of his stepmother William H. Green continued to live with his sister until May 1, 1889, when he took apartments on Third street, in the city of Troy. On the 1st of May, 1890, he went to the house of his aunt, Mrs. Kate Green, No. 5 Union place, where his cousins, the Misses ¡Mamie, Emma and Sarah,, resided with their mother. He remained there until June 15, 1890, when he went to Brooklyn to visit the Barnes, where he-remained until July 9, 1890, when he went to Brighton Beach,. Coney Island, in special charge of a nurse, one Peter Fitzharris.. He was at that time quite ill. The Barnes visited him there until July 13, 1890. At that time his sister, Georgianna B., in response-to his invitation, arrived. On the 22d day of July, 1890, the-will presented by her for probate was drawn by 'William H. Hollister, Jr., of Troy, her lawyer, but a mutual acquaintance and one who had transacted business for both on a previous occasion. July 24 William H. Green and his sister, accompanied by the-nurse, left Brighton Beach and went to Patchogue, a place forty or fifty miles distant, at which place he died August 11, 1890.

By the will of July 2, 1888, presented by Eugene F. and Albert 0. Barnes, the testator devised the Troy property to Miss Mamie Green, the Brooklyn dwelling to. Miss Emma Barnes for life, the remainder to her sister, Miss Angie Barnes. By this will also he gave to his half sister, Georgianna B. Green, a legacy of §62.50, and named the Misses Emma and Angie Barnes, Emma and Sarah Green as residuary legatees.

By the codicil to his will, executed July 2, 1890, he gave a-legacy of §200 to Mrs. Wykoff, formerly Miss Barnes, revoked a legacy to a cousin on his mother’s side, and gave a legacy in lieu*

By the instrument offered for probate as the will of testator, dated July 22, 1890, he gave, with the exception of $500 each to four cousins, daughters of John Hyatt, his entire property to his sister, Georgianna E. Green.

The application for the proof of these several wills was consolidated and the matters heard together. The proponent of the later-will contested the probate of the first will upon the ground that the testator by his will of July 22 had revoked the former will. The proponents of the first will contested the probate of the last will upon the ground that the last will was not the will of testator, but was obtained by fraud, duress or undue influence of his sister, Georgianna E. Green, the proponent and principal beneficiary.

The sole question to be decided upon this hearing is, was this will of July 22 obtained by fraud, duress and undue influence?

Upon this question the burden of proof is ordinarily upon the party who makes the allegation. Tyler v. Gardiner, 35 N. Y., 559 ; Baldwin v. Parker, 99 Mass., 79 , 85; In Matter Will of Martin, 98 N. Y., 196 .

The general rule is that the influence that will avoid a will as undue must amount to moral coercion, restraining independent action and destroying free agency ; or the importunity must be such as to constrain the testator to do that which is against his desire. The undue influence which deprives a testator of the free exercise of his will must be exercised in respect to the very act. It is not sufficient for the purpose of establishing undue influence to show that the will is the result of affection and gratitude, or the persuasion which a friend or relative may legitimately use. Courts will hesitate to find that undue influence has been practiced, when the will is fair and reasonable, according to common instincts of mankind, and is suchas might with propriety and justice have been made by the decedent. In the absence of evidence of force, threats or coercion, the exercise of an influence springing from family relations or from motives of duty, affection and gratitude cannot be regarded as undue.

But the proof of undue influence need not be direct; it may be shown by circumstantial evidence, such as sinister conduct attending the execution of the will, mental weakness of the testator, want of harmony of the will with the testator’s general intentions, to which may be added interest and opportunity, although the last two are not alone sufficient. Coit v. Patchen, 77 N. Y., 589 ; Childrens' Aid Society v. Loveridge, 70 id., 394; 1 Jarman on Wills, 36 ; Tyler v. Gardiner, supra.

And it is further held, as a rule of evidence, when a later will is sought to be established to overthrow a prior one, the earlier will being made when the testator was in health and under circumstances of deliberation, and the latter when he was in feeble health and exposed to undue influence, and its provisions hostile to the provisions of the former, the prior will must prevail unless the later will is so proven as to satisfy the judgment and con

In ordinary cases the formal execution of the will by a person who can read and write imports a knowledge of its contents. But in a case where a will is prepared or procured by one interested in its provisions the proponent must go farther, and not only show soundness of mind, but actual knowledge by the testator of the contents of the will, and that he was at that time under no undue or improper restraint of volition. But where it appears that the testator was of sound mind and clearly understood the provisions and contents of the will and appeared to be at that time under no undue influence, the burden which the law casts upon the contestant who alleges fraud and undue influence, returns and remains with him to establish his defense. Baldwin v. Parker, supra; Tyler v. Gardiner, supra; Boyse v. Rossborough, 6 H. L. Cases, 46.

In the last case Lord Cransworth says: “ Where it has once been proved that a will has been executed with due solemnity by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges the undue influence ; undue influence cannot be presumed.”

In the case of the last will, which was drawn by Mr. Hollister, the formal execution of the will was not only satisfactorily proven, but it appeared that the testator dictated the will,- paragraph by paragraph, to the draughtsman in the absence of his sister; and when the will was executed, in the presence of three witnesses, including Mr. Hollister, it was read to him, and he also read the will himself in their presence, and after reading it said it was right, signed it, declared it tobe his last will and testament, and requested the witnesses, who were present to sign it as such. Although be was at that time sick, yet his health was considerably improved, so much so that he sat up during a portion of the time in a chair, and within two or three days thereafter traveled a distance of forty or fifty miles on the cars to Patchogue, retaining sufficient strength after his arrival there to spend the next day but one after his arrival, and several days thereafter, upon the hotel piazza, walking about unassisted, conversing freely with those whom he chanced to meet.

But the proponents of the earlier will insist that, motwithstanding the due and formal execution of the later will, and the testator’s undisputed knowledge of its contents, that the later instrument was the result' of the dominating will and undue influence exercised by his sister, not in making the will, but in causing the testator to make the instrument; and they insist that the will of July 2, 1888, which was made when the testator was in comparative health, residing with his sister, which was republished by the codicil of July 2, 1890, was the result of a deliberate intent upon the part of the testator to deprive his sister of his property and

It is further insisted that the declarations and conduct of the deceased, embracing a period of three or four years prior to his death, are in strict accord with the intention as expressed in said will and codicil.

In support of this contention, evidence was produced tending to show that the testator complained of petty annoyances which he had been subjected to at his home when residing with his sister ; that he stated he was unkindly treated; that he left the house because of such treatment, and although his outward relations with his sister were polite and friendly, yet at heart he disliked her, and deliberately resolved that she should not enjoy any of his property.

In further support of this contention, it is insisted that whilst testator disliked his sister, he was, on the other hand, sincerely attached to his cousins, the Misses Green, and especially Miss Mamie Green, his principal beneficiary under the will, and the Barnes of Brooklyn, with whom he spent a great deal of. time, and of whom he frequently spoke to his intimate friends. Tln.t these relations between these respective parties, as manifested in the earlier will, continued down until-the arrival of his sister at Coney Island on the 13th of July, 1890. It appears he had been quite sick at Troy from about the 1st of May, 1890, when he left his boarding place on Third street and went to his aunt’s, Mrs. Kate Green, No.'5 Union Place, where he remained .about six weeks. It appears his sister learned of his illness and wrote him a letter of sympathy, dated June 5, 1890, inviting him to her home, proffering to send for him and nurse him, to which he replied the same day kindly, thanking her for her proffer, and said he had been very sick, but was better, and that he would come over and see her as soon as he could. It does not appear that he called, though he apologizes for it in a subsequent letter which he wrote to his sister from Brighton Beach.

The proponents of the earlier will insist that his testamentary intention in regard to the disposition of his property remained, as appears in his will and codicil, without change, until his sister took charge of him on the 13th day of July; that she thereafter discharged his former physician, excluded the Barnes, who were visiting him from day today, and continued such exclusion until the-day of his death, took possession of his person,-dominated his will,, sent for her own lawyer, had a will drawn in her favor and then, removed, him secretly to another place where knowledge of his whereabouts was not known and would not be likely to be ascertained by tlie beneficiaries under his former will, and they invoke the rule that as the former will was executed when the

We aré inclined to hold that this rule must obtain in this case, notwithstanding the general rule that the burden of proof is with the contestants to prove their defense of fraud and undue influence.

The period of time when the change occurred is exceedingly ■brief, not to exceed eight days. The question then comes to this: Does the evidence in this case furnish satisfactory proof that this complete change, which was wrought in so brief a period under the circumstances disclosed by the evidence in this case, was the unbiased, uninfluenced act of the testator’s own mind and will ?

The proponent of the later will insists that the proof is satisfactory and complete that the later instrument reflected the mind of the testator at the time of its execution, and in support of her contention claims that the will is a natural one, made in accordance with the common instincts of mankind, that it sprang from motives of duty, affection and gratitude, that it was such as might with propriety and justice have been made by the decedent; and, moreover, insists that the testimony, which covers much of the past history of the lives of the testator and his sister, shows that they lived together in one family for many years without bickering or discord, bound together by the ties of love and affection, and that whatever there was that interfered with those relations arose not to exceed three or four years before his death. A cloud of witnesses were produced, family friends and acquaintances, some calling frequently, some visiting and remaining weeks and months together; others, seamstresses and domestics, employed in the house, off and on, for years, who not only testified to friendly and pleasant relationship between the brother and sister, but even at times to marked exhibitions of affection and regard. This testimony is corroborated very greatly by a great body of letters, numbering some 300, extending over a period of ten years, which evince, at least during the earlier period, not only that the testator was satisfied with his home, but gladly returned there when away. In 1883 he writes his sister, she being at that time away with her mother, “T don’t know where I shall stop in Troy, anyhow, I shall be awful lonesome in a boarding house.” And again, within a day or two, “ I wish things were so fixed that you would come home and open the house. You may think I am in a hurry, but I am tired of going about from pillar to post; ” and a day or two later writes, “ I am stopping at Mo. 3 Ida terrace, and may make a change." [Ida terrace was the home of Mrs. Kate Green and her daughters.] “ I would like to change over to 7% Fifth street.” £At that time the residence of his sister.]

There appears no reason to doubt that these wills expressed the intention of William H. Green at the time they were made. It is manifest -that the will of July 2, 1888, like the earlier one, of which it was a copy, and perhaps an earlier one still, was based upon deep resentment; somehow, under some circumstances which the evidence does not explain, the testator felt, whether justly or unjustly, that he had been injured, and its recollection sank deep into his heart, and this will was the undoubted offspring of resentment for an injury, real or imaginary. That it was deep, appears, from the fact that time had not softened his feelings towards his sister, although he was courteous and friendly in his external deportment. The will was prepared while living with his sister and before the death of her mother. The resentment had survived an illness in which his sister faithfully and carefully attended, him in Mew York in December, 1889, and undoubtedly continued down to July 2, 1890, for he then republished the will by his codicil of that date. His associations with the Greens and Barnes subsequent to' the making of the wills and his withdrawal from the home of his sister in May, 1889, and his not very frequent visits there thereafter, added to the jealousy and bickering which existed between the different families (Miss Georgianna R. Green on one side and the Greens and Barnes on the other), was not calculated to induce him to change his testamentary intention.

This brings us now to the important question in the case: the change of testamentary intent. That the earlier will was based upon resentment is manifest in the very instrument itself. It is claimed that the resentment or its cause needed but to be removed, when the old love and affection which once reigned in his heart for his sister would return, and then, in accordance with the common instincts of humanity, his sister, his only heir-at-law and next of kin (upon whom the law would cast the inheritance without a.

In support of this contention it is urged that the evidence shows that he was a man of decided opinions, of strong will and not likely to be influenced to do anything which his heart .and judgment did not approve, and the evidence greatly preponderates from those who knew him best, including such witnesses as David M. Green, who was the executor of his father’s will, General •Joseph B. Carr, his wife and many others, who had known him long and well, neighbors and intimate friends, that he was a person of strong will. The evidence shows beyond all question that he dictated the later will, read it carefully and executed it after an expressed approval of i.ts contents.

But in this case some proof is required addition, considering the ill-health and weakness of the testator, his peculiar surroundings, his absence from those with whom he had for years associated as friends, and his previously decided expression of his testamentary intention, to show that all resentment had been buried and forgotten and that an entire reconciliation had taken place between this brother and sister and that they were upon their former footing, when, as he stated, he would he glad to change “from No. 3 Ida terrace ” (the home of Mrs. Kate Green and her daughters') “ to 72 Fifth street ’’(his sister’s home.)

We find him sick in Brooklyn at the Barnes' with a nurse employed. The doctor recommends a change to Brighton Beach, Coney Island. He goes there, accompanied by the nurse. He is sick unto death with his heart trouble, sits up all night at the window on his knees, panting for breath. The Barnes visit him every day or two, make quite protracted stays, and the testimony tends to show upon one occasion indulged in contentions in his presence which worried and wearied him. On the 11th of July he writes a pathetic letter to his sister, telling her that he was very ill, and adding: “ If you go west by way of New York, it would be nice for you to come on here for a day. I was sorry I could not see you before I left Troy, but it wasn’t possible. If you come on, I am in room 210. If you wait until fall I may not be able to see you at all, as unless a change takes place soon for the better I shall have passed to the great majority.”

His sister immediately came down, and if we may believe the testimony of Mr. Fitzharris, the nurse, she was received with ■every manifestation of joy and affection. What took place from this time on until his death between this brother and sister is an important matter to be determined. What explanations followed their meeting, how the differences were settled and adjusted, does not appear, and it is not necessary that it should, if they were .settled and adjusted. Fitzharris’ testimony tends to show a perfect reconciliation between the parties. He testifies that the tesvtator requested her to stay and take charge of him, and told her

Mr. Fitzharris’ testimony was challenged upon the hearing as-partisan, if not worse, and I should be quite disinclined to decide a case of the importance of this one upon his uncorroborated testimony, although there was no impeachment of this witness made, nor attempted, save that furnished by his own somewhat contradictory statements in regard to some minor matters testified to by

It must be remembered that the witness knew nothing of these parties, that she had not met Miss Green; that Miss Green was absent at the time of the conversation, had been gone for two days; that the testator was in comparative health, able to walk about the piazza; that he was at the time alone, so that he had ample opportunity to communicate with the Barnes and Greens had he so desired ; and if in the making of the last will he had been coerced, unduly influenced, or even overpersuaded, the act was so recent that such influence would have been likely to have left its impress, and have found expression in that conversation, instead of expressions entirely the reverse.

This testimony was not challenged or impeached or sought to be bjr the contestants of the later will, and it shows a condition of mind upon the part of the testator in absolute accord with the testamentary disposition of his property made by his last will and.

Some question was made upon the trial as to the effect as evidence of the declarations of a testator made prior and subsequent, to the making of the will.

It is well settled that the fact of fraud or undue influence can not be proved by the declarations, prior or subsequent, of the testator, but such declarations are admissible when they denote the; mental status or mental fact in issue.

It is always open to inquiry whether undue influence in any case operates to produce the will, and the conduct and declarations of the testator are entitled to more or less weight whether made before or subsequent to the making of the will, depending somewhat on the circumstances of each particular case. Subsequent declarations are competent when made so near the time of the execution of the will that a reasonable conclusion may be-drawn as to the state' of mind of the testator at the time the will was executed. Shailer v. Bumstead, 99 Mass., 128 ; Waterman v. Whitney, 1 Ker., 157; Marx v. McGlynn, 88 N. Y., 857 .

The declarations in this case which were made t-o Mrs. Yail were made so near the time of the making of the will (four days) that they are clearly competent as showing the state and condition of mind under which the last testamentary disposition of testator’s property was made, and therefore are- not only competent, but cogent evidence upon the material question here at issue. And finally the proponent of the later will invokes the rule that, the law presumes a testator of sound mind and free volition will in general bestow his goods upon his next of kin and will not disinherit his heir, and assert the further rule that a change of testamentary intention, however sudden, which results in giving the-inheritance to- the heir is not even ground for serious suspicion, when the change follows a reconciliation after estrangement. I think the rule claimed is correct and- that it applies in this case,, and especially when the reconciliation is stripped of sinister appearance, even, by reason of the first advance proceeding from the testator.

Finally, with the most careful and conscientious thought that. I have-been able to bestow upon this matter, which has involved a great amount of time and labor in the examination of many hundred pages of testimony and voluminous briefs of counsel, F have reached the conclusion, in view of the fact that the testator-felt that he was “ soon to join the great majority,” and had sent, for his- sister who- thereafter nursed him tenderly and- of whom he

Let a decree be entered admitting the will of July 22, 1890, to probate.